Tuesday, 18 November 2014

Rottmann Rules UK? Can British citizenship be taken away without regard to EU law?

Simon Cox*

Today the UK
Supreme Court began grappling with the meaning and effect of the Rottmann
judgment of the CJEU, which concerns the constraints placed by EU law on
the loss of national citizenship. Counsel for the British Home Secretary argued
that an interpretation of that judgment as applying beyond cross-border cases
would take the CJEU beyond its competence. The Court questioned whether it
could decide the application of Rottmann without first making a reference to
the CJEU: an idea which the Government did not seriously oppose.

The case
before the Court was brought by Vietnamese-born
Mr Pham, known as B2 until he dropped his request for anonymity today.
Acting under the British Nationality Act 1981 (BNA), the Home Secretary had deprived
him of his British citizenship on national security grounds. Pham argued he had
ceased to be a Vietnamese citizen. The Special Immigration Appeal Commission
agreed and allowed the
appeal under BNA provision preventing statelessness. The Court of Appeal disagreed,
holding that Vietnam had not complied with it national law, and so Pham
remained its citizen for purposes of the 1954 UN Statelessness Convention.
The interpretation of that Convention is a key issue in the appeal.

EU law is also
at stake. Aside from statelessness, Pham complained of his loss of EU citizenship
under Article 20 TFEU. Pham relied on C-135/08 Rottmann to argue that this result meant the British deprivation
decision could only be taken with due regard to EU law, in particular,
proportionality.

That argument
had been rejected
by the Court of Appeal in a different case, R (G1) v Home Secretary [2013]
QB 1008. Lord Justice Laws interpreted Rottmann
to apply only to cross-border cases. Even more fundamentally, that court queried
whether UK law would recognise the CJEU as having authority to alter the operation
of the BNA.

G1 was refused
permission to appeal from the Court of Appeal by the Supreme Court. Later, the
Supreme Court gave Pham permission, including on the EU law point.

At today’s
hearing, several judges queried with Pham’s barrister, Hugh Southey QC, whether
the court needed to decide whether EU law applies. Would EU law proportionality give
greater rights than British law proportionality?, Lord Reed wondered. British
citizenship is akin to a fundamental right, so proportionality is required
suggested Lord Neuberger. Lord Carnwath asked whether the BNA anyway required a decision to be proportional. Lord Sumption
suggested that since a decision to deprive a person of British citizenship
definitely does deprive them of EU citizenship, British public law may require
the decision on the former to respect the legal approach to the latter.

Tim Eicke QC,
counsel for the Home Secretary, accepted that the deprivation decision could
only be upheld if it met the proportionality requirements of Article 8 of the
European Convention of Human Rights. He argued that Rottmann proportionality
would be no greater than those requirements. He did however accept that EU law
may require greater disclosure of otherwise secret evidence than the European Convention on Human Rights (ECHR) would
require. Pressed on ‘substantive’ proportionality, he conceded UK public law
would be less protective than EU law.

Lord Reed and
Lady Hale queried whether Article 8 ECHR family
life rights would be as extensive as EU law rights of free movement. Mr Eicke argued
that the Strasbourg judgment in Karassev
v Finland, 12 January 1999, extends the ECHR’s reach to consideration of
whether the loss of nationality breaches the Article 8 right to private life.

The court
referred to Lord Justice Laws argument in G2 that British citizenship does not
fall within the competence of EU law at all. Mr Southey replied that the
question is one of interpretation of the EU Treaties.

Lord Mance quizzed
Tim Eicke QC, counsel for the Home Secretary, about the effect of the adoption
of subsequent EU treaties re-enacting old treaties.

The Open
Society Justice Initiative had been given permission to intervene in the Pham
case, and made a different EU law point in their
written case. Relying on EU instruments conferring advantages on stateless
persons, like Regulation 883/2004 (which regulates the coordination of social
security for persons moving between Member States), they argued that
statelessness is an autonomous concept of EU law. Pham’s argument about the
meaning of statelessness could not be rejected unless the UK Court had first
taken into account the EU law position. Since the CJEU had not yet interpreted
the notion of statelessness, the Supreme Court would have to make a reference,
they argued, unless they agreed with Pham under British law read alone.

The UK
Government argued that, even if the case fell within the scope of EU law, the
notion of statelessness was not an autonomous EU law concept, because it arises
here only under the BNA, a British law.

While the
hearing continues tomorrow, the Government’s submissions on EU law were largely
made today.Updated: hearing on Wednesday 19 November

Pham – Day 2 –
Reference to the CJEU on the cards

The Pham
hearing concluded today in Court 1 of the Supreme Court with a morning of oral
argument, first from Home Office barrister Robin Tam QC, then a reply by Hugh
Southey QC for Pham.

The
seven-judge panel’s comments showed them weighing up two alternatives. To ask
the CJEU what constraints, if any, EU law places on the procedure and substance
of depriving Pham of his British citizenship? Or to dismiss the appeal without
ruling on EU law, meaning the case would return to the fact-finding body – the
Special Immigration Appeals Commission (SIAC).The second option would see SIAC making findings on the alternative
premises that EU law does, and does not, apply. If SIAC found that the
difference in law would cause a difference in result in Pham’s case, a
reference could then be made to the CJEU, by SIAC or on a further appeal.

The first
option would be slow, pointed out the court. No-one thought the second option
would be straightforward. Much of the discussion concerned Mr Pham’s right to
know the British security service case that he is a threat to national
security. Under the SIAC procedure, this is a crucial tool for appellants.
Security service reluctance to disclose their arguments and evidence mean they may
choose to abandon claims of terrorism rather than tell the appellant what they
have been saying about him in secret. So a greater right to disclosure can mean
the case is abandoned altogether.

The extent of
legal duties to disclose has been closely fought in challenges to UK Government
decisions. UK laws denying any right to disclosure were first weakened by the
Court of Human Rights in A &
Others v UK, holding that detention without trial could not be used if the
gist or essence of the case were not disclosed to the detainee. In AF No 3, the UK’s
highest court followed this reasoning in ‘control order’ cases. The CJEU
addressed this in C-300/11
ZZ, ruling that an EU citizen facing exclusion from another EU state has a
right to know the gist. However, in I.R.
v UK Strasbourg rejected arguments that ECHR Article 8 requires the same
disclosure.

Could Pham
have more under the ZZ approach to EU
law than under UK law, asked Lord Mance. Mr Tam conceded that he could: AF No 3
does not apply to citizen deprivation appeals. But even assuming EU law does
apply to a citizen deprivation appeal, the UK Government did not accept that EU
law would require a ZZ approach. (Rottmann speaks only of states ‘having
regard to EU law’.)

All this showed
SIAC would likely have a hard job to do without clarification of the basic
question - does EU law apply – and, indeed, the further question – what does EU
law require. Unsurprisingly, Mr Southey vigorously opposed the second option. A
number of cases were left undecided – perhaps undecidable – by the current
uncertainty, he suggested.

On Rottmann, Pham’s legal team argued that
the language of the judgment showed that the competence invoked was citizenship
(article 20 TFEU), not free movement (article 21), and pointed to the Ruiz Zambrano ruling. Mr Southey
then addressed the Government’s fall back argument that the CJEU would
overreach EU competence under Art 5 TEU by requiring EU law to be applied to
deprivation of citizenship (except in free movement cases). He argued that the
UK Parliament had made the CJEU the sole arbiter of EU competence. Section 3 of
the European Communities Act 1972 requires the UK courts to follow rulings of
the CJEU on EU law: EU competence is a question of interpretation of the EU
Treaties. If the UK Government did not like a ruling of the CJEU, it must
either persuade the other Member States to renegotiate the Treaties, or amend
the European Communities Act.

Lord Mance suggested
the Supreme Court could ask the CJEU whether it meant to go as far as it
appeared to have done in Rottmann. Mr
Southey accepted it could.

The Supreme Court
reserved judgment, to be given at a later date.

*Simon Cox is the Migration Lawyer of the
Open Society Justice Initiative and part of their legal team in their
intervention in Pham